Provisional Waivers: New CIS Memo on "Reason to Believe"

By Debbie Smith

On January 24, 2014, USCIS issued an instruction to its employees on the adjudication of provisional waivers in cases where the applicant has a criminal history. The new instruction limits the grounds on which provisional waivers can be denied. The provisional waiver process, first implemented by regulations on March 4, 2013, allows immediate relatives to apply for the waiver of the unlawful presence ground of inadmissibility before departing the United States for a consular interview abroad. Under these provisional waiver regulations, a waiver is not available to an applicant whom USCIS has “reason to believe” may be subject to a ground of inadmissibility other than unlawful presence.

Applicants with Criminal Histories

Until the January 24th guidance, applicants who had been convicted of any criminal offense other than a minor traffic citation were found ineligible for a provisional waiver under the USCIS interpretation of the "reason to believe" standard. Where biometrics or a law enforcement check revealed any apparent criminal issue in the applicant's background, USCIS would not analyze or consider the evidence to determine if it actually constituted a ground of inadmissibility. Instead, USCIS denied the provisional waiver under the "reason to believe" standard on the ground that the consular officer "may find the individual inadmissible based on his or her criminal history." See USCIS, Questions and Answers: USCIS-American Immigration Lawyers Association (AILA) Meeting (April 11, 2013). As a result, applicants who were not actually inadmissible based on any criminal basis were nonetheless denied the provisional waiver under the “reason to believe” standard.

The January 24th instruction changed this policy. Now USCIS officers "should not find a reason to believe that the applicant may be subject to inadmissibility under INA § 212(a)(2)(A)(i)(I) (the crime involving moral turpitude ground) solely on account of that criminal offense." See USCIS, Guidance Pertaining to Applicants for Provisional Unlawful Presence Waivers, (January 24, 2014). The new policy requires USCIS adjudicators to examine any evidence in the record, including evidence provided by the applicant or the applicant's attorney, in order to determine if the applicant is inadmissible on a crime-related ground. The adjudicator must now analyze whether the criminal offense actually constitutes a crime involving moral turpitude and, if so, whether the applicant falls within the "petty offense" or "youthful offender" exception. The new instruction recognizes that because a criminal conviction in and of itself may or may not constitute a ground of inadmissibility, an analysis of the underlying criminal offense is the only way to conclude if there is a "reason to believe" that the applicant may be inadmissible.

Remaining Issues

This policy is an important step forward in establishing a fair and just provisional waiver procedure. In August 2013, advocates, including CLINIC, AILA and other organizations, urged USCIS to apply a proper interpretation of "reason to believe." The January 24th guidance is a positive development in response to advocates' concerns. However, there are certain limitations in the new guidance that should be kept in mind.

First, the new guidance does not address the process for reconsidering those applications that have already been wrongly denied before the guidance issued. The guidance contains no information on whether USCIS will reopen the previously denied application or whether a new filing will be required. It does not address whether, assuming a new filing is required, a filing fee will be needed. While the waiver regulations do not provide for the applicant to file an appeal or motion to reopen, there is nothing to prevent USCIS from reopening and reconsidering a previously denied application.

Second, the guidance did not does not address a separate issue related to USCIS use of the “reason to believe” standard, namely waiver denials based on an improper assessment of the applicant's statement made at the time of an attempted entry at the border. Discrepancies related to the applicant's birth date or name, for example, are not "misrepresentations" that are material to the applicant's eligibility for admission to the United States. Nonetheless, USCIS has routinely denied waiver applications based on the "reason to believe" standard where the applicant gave a false name or birth date when stopped at the border and refused entry, or where the officer reported the information incorrectly or incompletely. The January 24th instructions do not correct this improper application of the "reason to believe" standard.

CLINIC hopes that USCIS will issue further instructions addressing the reopening of improperly denied waiver applications and the proper assessment of erroneous but immaterial statements made during the voluntary return process at the border. CLINIC continues to advocate for these changes.